Preview
AMY R. LEVINE, State Bar No. 160743
MATTHEW TAMEL, State Bar N0. 229378
J.
KASMIRA M. BROUGH, State Bar N0. 308791
2 Dannis Woliver Kelley
3
275 Battery Street, Suite 1 150
San Francisco, CA 941 11
FILED
Telephone: 41 5,543.41 11
4 Facsimile: 415.543.4384 SEP 1 7 2018
5
6
Attorneys for Defendant
LOS ALTOS SCHOOL DISTRICT av mmmgam
7
R. AWN
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SANTA CLARA
10
GIRL DOE, a minor by her Guardian ad Case N0. 17CV307094
11 Litem, Father Doe,
8
EX PARTE APPLICATION OF
"3:: 12 Plaintiff, DEFENDANT LOS ALTOS SCHOOL
:25,
DISTRICT FOR AN ORDER CONTINUING
~< 13 v. TRIAL OR ALTERNATIVELY, FOR AN
ORDER SHORTENING TIME TO HEAR A
ggg
l4 LOS ALTOS SCHOOL DISTRICT and MOTION TO CONTINUE;
ME
2w
DOES 1 through 50, MEMORANDUM OF POINTS AND
15 AUTHORITIES; DECLARATION OF
EE: Defendants. KASMIRA M. BROUGH IN SUPPORT
33$
|\
16 THEREOF
N
17 Date: September 17, 2018
Time: 8:15 am
18 Department: 19
Judge: Hon. Peter H. Kirwan
19
Trial: October 15, 2018
20 Complaint Filed: March 8, 2017
21 Exempt from filing fees pursuant to Gov.
Code, § 6103.
22
23
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25 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
26 PLEASE TAKE NOTICE THAT on September 17, 201 8, at 8:15 a.m., 0r as soon
27 thereafter as the matter may be heard, in Department 19 0f the above-entitled court, located at 191
7Q
1
EX PARTE APPLICATION OF DEFENDANT LOS ALTOS SCHOOL DISTRICT FOR CONTINUANCE;
DWK DMS 3298466\ MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION IN SUPPORT THEREOF
N. First Street, San Jose, California 951 13, the Los Altos School District (“District” or “LASD”)
will and hereby does apply ex parte for an order continuing the trial set for October 15, 2018 in
the above-entitled action, or, in the alternative, for an order shortening the time for the Court to
hear a motion to continue the trial date.
This ex parte application is made pursuant to Code of Civil Procedure section 128(a), and
\OOONOUIAUJN
California Rules of Court, rule 3.1200 et seq. and 3.1332. Good cause exists t0 grant this ex parte
application as the District will be irreparably harmed 0r unfairly prejudiced if the District’s
motion is not resolved in advance 0f the date set for trial in this matter, October 15, 2018. The
District has recently learned of potential claims, against a third party, and on September 13, 201 8,
10 filed a motion for leave to file a cross-complaint against that party, E.M. Education, Ltd., dba The
11 Children’s House of Los Altos that will be heard on shortened notice 0n October 2, 201 8.. If the
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94111 12 District’s motion for leave to file a cross-complaint is granted, the earliest response date will not
KELLEY
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CA l3 run until after the current trial date. Moreover, the parties will not have had a reasonable
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STREH,
14 opponunity t0 conduct discovery and prepare for trial. There have been no previous continuances
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DANNIS BATrERY
15 of the trial. The interests ofjustice are best served by the continuance and no party will be
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16 prejudiced. This application is made as soon as reasonably practical once the necessity for the
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17 continuance was discovered. This ex parte application is based upon this application, the attached
18 memorandum 0f points and authorities, the attached declarations and exhibits, all pleadings and
19 papers on file in this action, and further evidence and argument as may be offered at the time of
20 hearing on this matter.
21 Pursuant to California Rules of Court, rule 3.1202, the known names, addresses and
22 telephone numbers of the attorneys for the parties are set forth in the Service List attached hereto.
23 Pursuant to California Rules of Court, rule 3.1203, and as set forth in the attached declaration of
24 Kasmira M. Brough, timely notice of this ex parte application was given to all parties on
25 September l4, 2018.
DANNIS WOLIVER KELLEY
26
27
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DATED; September 16, 2018 By; KMHM
f I
l
2
DWK DMS EX PARTE APPLICATION OF DEFENDANT LOS ALTOS SCHOOL DISTRICT FOR CONTINUANCE;
3298466vl MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION [N SUPPORT THEREOF
KASMIRA M. BROUGH
Attorneys for Defendant
LOS ALTOS SCHOOL DISTRICT
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
Defendant Los Altos School District hereby requests a continuance of the trial date
\DWNGUIALHN currently set for October 15, 201 8, or in the alternative, an order shortening the time for the Court
to hear a motion to continue the trial date. Good cause exists to hear the District’s motion to
continue the trial date 0n shortened notice.
II. FACTUAL AND PROCEDURAL BACKGROUND
The present litigation is a tort case arising out of incident(s) alleged to have occurred at
10
Loyola Elementary School (“Loyola”), a District elementary school. Plaintiff alleges that in
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January 201 6, while she was a student at Loyola, Plaintiff suffered injuries when two classmates
94111 12
KELLEY
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“attacked, bullied and harassed” her behind a shed (“Shed”) located on the Loyola playground
CA 13
WOLIVER STREET,
premises. Plaintiff asserts a sole negligence claim, pursuant to Education Code section 220,
14
FRANCISCO,
233.5, and 44807.1 The District is the only named defendant and has appeared in this matter.
DANNIS BATTERY
15
Plaintiff filed her Complaint 0n or about March 8, 2017. On or about May 26, 2017, the
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District filed its Answer. Shortly thereafter, the parties agreed to engage in limited discovery for
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the purposes of engaging in mediation, which to date has not occurred. (Declaration of Kasmira
18
M. Brough (“Brough Decl.”), 11 3.) On April 4, 201 8, Plaintiff filed a motion for trial preference,
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which the District opposed on April 20, 2018. (Ibid., 1] 5.) On May 24, 2018, the Court granted
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Plaintiff s motion, setting trial for October 15, 201 8, leaving open the possibility of a continuance
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should discovery be incomplete as of that date. (Ibid., 1111 4, 5) Since then, the parties have
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continued to engage in discovery, including written discovery, depositions, an independent
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mental examination, and multiple motions to compel. (Ibid., 11 5) However, discovery remains
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incomplete, with approximately 10 expert and fact witness depositions outstanding. (Ibid., 11 4.)
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In the course of this discovery process, on 0r about August 24, 2018, the District
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Plaintiff‘s second cause of action, for negligence per se, was dismissed by the court on District’s motion on
79 September l3, 2018.
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DWK DMS EX PARTE APPLICATION OF DEFENDANT LOS ALTOS SCHOOL DISTRICT FOR CONTINUANCE;
3298466vl MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION IN SUPPORT THEREOF
attempted unsuccessfully to access the Shed at issue in this case. (Ibid., 1] 7) The District learned
0n that date that the Shed did not belong t0 the District, but was instead erected, owned, accessed,
and maintained by E.M. Education, Ltd., dba The Children’s House of Los Altos (“Children’s
House”) pursuant to a lease agreement between the District and Children’s House. (Ibid.) Under
the terms of that lease agreement, Children’s House leases a portion 0f the Loyola premises and is
\DOOQOMAWN
obligated to defend and indemnify the District for any liability, claims, and damages arising out
of performance of that agreement as well as for any activity or thing done in conjunction with that
agreement. (Ibid.) A deposition of Children’s House’s person most knowledgeable about facts
relevant to the instant action is scheduled for September 17, 201 8. (Ibid.)
10 On September 13, 201 8, the District appeared ex parte seeking leave to file a cross-
ll complaint in this matter. The Court granted shortened notice to file a motion for leave t0 file a
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1 cross-complaint on Children’s House.
12 The motion was filed, and a hearing on that motion is
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CA l3 scheduled for October 2, 201 8.
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III. LEGAL ARGUMENT
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A. Requirements for Continuance
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16 Although trial continuances are disfavored, each case must be considered on its own
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l7 merits. (California Rules of Court, Rule 3.1332(c).) The party seeking a continuance “must
18 make the motion or application as soon as reasonably practical once the necessity for the
l9 continuance is discovered.” (California Rules of Court, Rule 3.1332(b).) The Court may grant a
20 continuance “only upon an affirmative showing of good cause requiring the continuance.”
21 (California Rules of Court, Rule 3.1332(c).)
B. Grounds for a Continuance
22
l. The Addition of a New Party Constitutes Good Cause for a
23 Continuance
24
There are a number 0f circumstances that may indicate the presence of good cause
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warranting a continuance. One of these circumstances is “[t]he addition 0f a new party if. .. [t[he
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new party has not had a reasonable opportunity t0 conduct discovery and prepare for trial; or [t]he
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other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in
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DWK DMS EX PARTE APPLICATION OF DEFENDANT LOS ALTOS SCHOOL DISTRICT FOR CONTINUANCE;
3298466vl MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION IN SUPPORT THEREOF
regard to the new party’s involvement in the case.” (California Rules 0f Court, Rule
3.1332(c)(5)(B).)
The District only recently learned of Children’s House’s potential involvement in, and
relevance to, this case. On August 24, 201 8, the District learned that the shed at issue belongs to
\DOOVQ'JIAUJN—i
Children’s House, not the District. The same day, the District served Children’s House with a
deposition subpoena for personal appearance and production of things. (Brough Dec1., 1t 7.) On
September 5, 201 8, the District sent Children’s House a letter tendering defense of the instant
action. (Ibid.) On September 13, 201 8, the District appeared ex parte, seeking leave to file a
cross-complaint against Children’s House for express and equitable indemnity, contribution, and
declaratory relief. (Ibid) The Court instead calendared the District’s motion for leave to be
heard on shortened notice.
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94111 If the District’s motion for leave to file a cross-complaint is granted at the hearing on
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MAmN—o
—_u—n———
CA October 2, 201 8, the cross-defendant’s response to the cross-complaint will not be due, at the
WOLIVER STREET,
earliest, until November 2, 201 8 — more than two weeks after the scheduled trial date. Even were
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Children’s House to be immediately served with and respond to the cross-complaint, the parties
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52 would be unable t0 complete any meaningful discovery in advance of the trial date. As set forth
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S in the District’s motion for leave to file a cross—complaint, granting such leave is in the interests
fl 00 ofjustice, as well as judicial economy. A continuance ofthe trial is necessary t0 give meaningful
effect to such cross-complaint.
2. lncompleteness 0f Discovery Constitutes Good Cause for a
Continuance
An additional circumstance indicating good cause for a continuance includes “[a] party’s
excused inability to obtain essential testimony, documents, 0r other material evidence despite
NNNNNNNN— QOMhWN—OC
diligent efforts.” (California Rules of Court, Rule 3.1332(c)(B).) The parties in this case are still
actively engaged in discovery. The District’s independent mental examination (“IME”) of
Plaintiff is partially completed, with a three hours of examination pending completion on
September 2 l 201 8. (Brough Decl.,
, Tl 4.) Plaintiff has noticed depositions of the District’s two
retained experts completing the IME for October 3 and 5, 2018. (Ibid.) Although the District
Qn
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EX PARTE APPLICATION OF DEFENDANT LOS ALTOS SCHOOL DISTRICT FOR CONTINUANCE;
MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION IN SUPPORT THEREOF
noticed depositions of Plaintiff‘s retained expert for September 27, 201 8, Plaintiff’s counsel has
claimed that Plaintiff’ s expert is not available prior to Saturday, October 6, 201 8. (Ibid.)
Moreover, Plaintiff’s most recent responses to written discovery, which were received on
September 13, 201 8, were deficient and the District is awaiting further responses. (Ibid.)
Discovery in this case was initially limited pending mediation. (Ibid., 11 3.) Discovery has
\Ooofiakhbwb)
also been complicated and slowed by numerous factors, including privacy protections of the
minors involved, confidentiality protections of police, juvenile court, and family court records,
and numerous discovery motions. Thus, while the parties have diligently engaged in the
discovery process, discovery (including documentary, deposition, and expert evidence) remains
10 outstanding.
C. Factors to be Considered bv the Court
ll
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94111 12 In ruling on a motion for a continuance, “the court must consider all 0f the facts and
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CA l3 circumstances that are relevant to the determination.” California Rules of Court, Rule 3. 1 332(d)
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14 sets forth various factors to be considered, including the following: (1) Proximity of the trial date;
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15 (2) Whether there have been any previous continuances, extensions of time, or delay 0f trial due
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16 to any party; (3) the length of continuance requested; (4) availability of alternative means t0
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17 address the problem that gave rise to the application for continuance; (5) prejudice that parties or
l8 witnesses will suffer as a result of the continuance; (6) if the case is entitled t0 preferential trial
19 setting, the reasons for that status and whether the need for a continuance outweighs the need to
20 avoid delay; (7) the court’s calendar and the impact of granting a continuance on other pending
21 trials; (8) whether trial counsel is engaged in another trial; (9) whether all patties have stipulated
22 to a continuance; (10) whether the interests ofjustice are best served by a continuance, by a trial
23 of the matter, or by imposing conditions on the continuance; and (1 1) any other fact or
24 circumstance relevant to the fair determination of the motion or application.
25 No previous requests for a continuance have been made or granted with respect to the trial
26 in this case, which was set less than four months ago. (Brough Decl., 11 8.) Although Plaintiff is
27 entitled to trial preference, the basis is Code of Civil Procedure section 36, subdivision (b), as a
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DWK DMS EX PARTE APPLICATION OF DEFENDANT LOS ALTOS SCHOOL DISTRICT FOR CONTINUANCE;
3298466vl MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION 1N SUPPORT THEREOF
party under 14 years of age (not subdivision (a), concerning parties over 70 years of age).
However Plaintiff is not in poor health, nor does she suffer from ongoing injuries such that a
continuance would deprive her of needed treatment, nor does it appear that she has directly
participated in this lawsuit prior to a partial IME on September 8, 201 8. Given the status of
outstanding discovery and the District’s pending motion for leave to file a cross complaint for
\DOOQO\MAWN
indemnity, the need for a continuance outweighs the need t0 avoid delay. The District will suffer
significant prejudice, as set forth above, if the trial date is not continued. Plaintiff opposes a
continuance, but has not cited a specific reason for doing so other than citation to Plaintiff’s age
and her entitlement to trial preference. The District seeks only a brief continuance to the earliest
10 possible date in 2019.
IV. CONCLUSION
11
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94111 12 Under the circumstances, the interests ofjustice are served by a reasonable, short
KELLEY
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CA l3 continuance. For the foregoing reasons, Los Altos School District respectfully requests that this
WOLIVER STREET,
l4 Court grant the District’s request for a continuance of the trial in this matter, or in the alternative,
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DANNIs BAITERY
15 grant shortened notice to have such a motion heard.
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DATED: September l6, 2018 DANNIS WOLIVER KELLEY
l6
27S
l7
'
By: r'
.
18
AMY R. LEVINE
MATTHEW TAMEL J.
l9
KASMIRA M. BROUGH
Attorneys for Defendant
20 LOS ALTOS SCHOOL DISTRICT
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DWK DMS EX PARTE APPLICATION OF DEFENDANT LOS ALTOS SCHOOL DISTRICT FOR CONTINUANCE;
3298466“ MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION IN SUPPORT THEREOF
DECLARATION OF KASMIRA M. BROUGH
I, Kasmira M. Brough, declare as follows:
AWN 1. I am an attorney admitted to practice law before all the courts of the State of
California. I am an associate in the law firm of Dannis Woliver Kelley (“DWK”), attorneys 0f
records for the Los Altos School District (“District” or “LASD”) in the matter of Girl Doe v. Los
Altos School District, Santa Clara Superior Court Case No. 17CV307094. I have personal
\OOONQQII
knowledge of the facts set forth in this declaration, except for those facts stated upon information
and belief, and as t0 those facts, I believe them to be true. If called upon to testify to these facts, I
could competently do so.
10 2. On September 14, 201 8, at 9:42 a.m., I sent notice via email to Plaintiff, through
ll her attorney Patricia Lewis, that the District would appear ex parte on September 17, 201 8, at
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94111 12 8: I 5 a.m. in Department 19 of the Santa Clara Superior Court, on an application for an order to
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CA l3 continue trial, 0r alternatively for an order shortening time to a motion to continue trial. A true
WOLIVER STREET,
14 and correct copy of this notice is attached hereto as Exhibit 1.
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DANNIs BATrERY
15 3. On March 8, 201 7, Plaintiff filed her Complaint against the District in the present
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16 matter. Upon information and belief, in or around May 2017, the parties agreed to participate in
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17 early mediation in this case and to conduct limited discovery to inform that mediation.
18 Thereafter, discovery was complicated by factors outside the parties’ control, as well as by the
l9 need for multiple motions to compel. On or around March 5, 2018, I spoke with Plaintiff’s
20 counsel regarding Plaintiff s possible motion for trial preference, and mediation and trial dates.
21 Plaintiff’s counsel suggested the summer as a possible time frame for mediation.
22 4. This ex parte application is required because this case is set for trial on October
23 15, 201 8, and a mandatory settlement conference on October 10, 201 8, and the parties have not
24 yet completed discovery. The District’s independent mental examination of Plaintiff, authorized
25 by the Court’s July 31, 2018 Order, will not be completed until September 21, 2018. Plaintiff has
26 noticed depositions 0f District experts for October 3 and 5, 2018, as agreed to by the parties. On
27 Thursday, September l3, 201 8, Plaintiff advised that her retained expert, whose deposition was
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DWK DMS EX PARTE APPLICATION OF DEFENDANT LOS ALTOS SCHOOL DISTRICT FOR CONTINUANCE;
3298466vl MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION [N SUPPORT THEREOF
noticed for September 27, 201 8, is not available for deposition prior to October 6, 201 8. In
addition to those expert depositions, seven other depositions are scheduled between September 17
AWN and 28, 201 8. Additionally, Plaintiff has not as of yet fully responded t0 all written discovery
requests. True and correct copies of correspondence with Plaintiff regarding the above
outstanding discovery issues are attached hereto as Exhibit 2.
5. On April 4, 201 8, Plaintiff filed her motion for trial preference, which the District
\OOONOLII
opposed on April 20, 201 8. Plaintiff’s motion was granted following a hearing on May 24, 201 8,
and trial was set for October 15, 201 8. Upon information and belief, at the hearing the court left
open the possibility of a continuance if the parties were unable to complete discovery in advance
10 of that scheduled trial date. Since then, the parties have diligently engaged in extensive
11 discovery, including written discovery, depositions, and independent mental examination.
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94111 12 6. Upon information and belief, at the case management conference on August 28,
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CA l3 2018, the Court suggested that the parties participate in mediation in advance of trial. Scheduling
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l4 mediation between completion of discovery and the currently scheduled trial date will be
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15 difficult, if not impossible.
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l6 7. This ex parte application is further required because in the course of discovery, the
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17 District learned of the existence 0f related claims against a third-party, arising out of the same
l8 transaction 0r occurrence as Plaintiff’ s claims against the District. Upon information and belief,
l9 on or around August 24, 201 8, the District attempted to access the shed at issue in this suit, and
20 learned that it belonged to E.M. Education Ltd., dba The Children’s House of Los Altos
21 (“Children’s House”), pursuant to a lease agreement between the District and Children’s House.
22 Under the terms of that lease, Children’s House agreed to defend and indemnify the District for
23 claims arising out of performance of the lease. On August 24, 201 8, I caused to be served on
24 Children’s House a deposition subpoena for personal appearance and production of documents,
25 which deposition is now scheduled for September 17, 2018. On September 5, 201 8, my co-
26 counsel Matt Tamel caused Children’s House to be served with a letter tendering defense of this
27 case. On September l3, 201 8, the District filed a motion for leave to file a cross-complaint for
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DWK DMS EX PARTE APPLICATION 0F DEFENDANT LOS ALTOS SCHOOL DISTRICT FOR CONTINUANCE;
3298466vl MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION IN SUPPORT THEREOF
l express and equitable indemnity, contribution, and declaratory relief against Children’s House.
That motion is scheduled for hearing on shortened notice on October 2, 201 8. If that motion is
AWN granted, Children’s House will be unable to respond to the cross-complaint or complete discovery
prior t0 trial. A true and correct copy of the Court’s order granting shortened notice on the
District’s motion for leave t0 file a cross-complaint is attached hereto as Exhibit 3.
8. There have been no prior continuances or extensions of trial in this case.
\DOO\IQUI
I declare under penalty of perj ury, under the laws 0f the State of California, that the
foregoing is true and correct.
Executed this 16th day of September, 2018, in Oakland, California.
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KASMIRA M BRCUFH
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KELLEY
Surrs
CA 13
STREET,
WOLNER
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FRANCISCO,
DANNIS BAWERY
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DWK DMS EX PARTE APPLICATION OF DEFENDANT LOS ALTOS SCHOOL DISTRICT FOR CONTINUANCE;
3298466“ MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION IN SUPPORT THEREOF
EXHIBIT 1
Kasmira M. Brough
From: Kasmira M. Brough
Sent: Friday, September 14, 2018 9:42 AM
To: Patricia Lewis
Cc: Matt Tamel; Jennifer Choi
Subject: Ex Parte Applications -
Preview
AMY R. LEVINE, State Bar No. 160743 MATTHEW TAMEL, State Bar N0. 229378 J. KASMIRA M. BROUGH, State Bar N0. 308791 2 Dannis Woliver Kelley 3 275 Battery Street, Suite 1 150 San Francisco, CA 941 11 FILED Telephone: 41 5,543.41 11 4 Facsimile: 415.543.4384 SEP 1 7 2018 5 6 Attorneys for Defendant LOS ALTOS SCHOOL DISTRICT av mmmgam 7 R. AWN 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SANTA CLARA 10 GIRL DOE, a minor by her Guardian ad Case N0. 17CV307094 11 Litem, Father Doe, 8 EX PARTE APPLICATION OF "3:: 12 Plaintiff, DEFENDANT LOS ALTOS SCHOOL :25, DISTRICT FOR AN ORDER CONTINUING ~< 13 v. TRIAL OR ALTERNATIVELY, FOR AN ORDER SHORTENING TIME TO HEAR A ggg l4 LOS ALTOS SCHOOL DISTRICT and MOTION TO CONTINUE; ME 2w DOES 1 through 50, MEMORANDUM OF POINTS AND 15 AUTHORITIES; DECLARATION OF EE: Defendants. KASMIRA M. BROUGH IN SUPPORT 33$ |\ 16 THEREOF N 17 Date: September 17, 2018 Time: 8:15 am 18 Department: 19 Judge: Hon. Peter H. Kirwan 19 Trial: October 15, 2018 20 Complaint Filed: March 8, 2017 21 Exempt from filing fees pursuant to Gov. Code, § 6103. 22 23 24 25 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 26 PLEASE TAKE NOTICE THAT on September 17, 201 8, at 8:15 a.m., 0r as soon 27 thereafter as the matter may be heard, in Department 19 0f the above-entitled court, located at 191 7Q 1 EX PARTE APPLICATION OF DEFENDANT LOS ALTOS SCHOOL DISTRICT FOR CONTINUANCE; DWK DMS 3298466\ MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION IN SUPPORT THEREOF N. First Street, San Jose, California 951 13, the Los Altos School District (“District” or “LASD”) will and hereby does apply ex parte for an order continuing the trial set for October 15, 2018 in the above-entitled action, or, in the alternative, for an order shortening the time for the Court to hear a motion to continue the trial date. This ex parte application is made pursuant to Code of Civil Procedure section 128(a), and \OOONOUIAUJN California Rules of Court, rule 3.1200 et seq. and 3.1332. Good cause exists t0 grant this ex parte application as the District will be irreparably harmed 0r unfairly prejudiced if the District’s motion is not resolved in advance 0f the date set for trial in this matter, October 15, 2018. The District has recently learned of potential claims, against a third party, and on September 13, 201 8, 10 filed a motion for leave to file a cross-complaint against that party, E.M. Education, Ltd., dba The 11 Children’s House of Los Altos that will be heard on shortened notice 0n October 2, 201 8.. If the 150 1 94111 12 District’s motion for leave to file a cross-complaint is granted, the earliest response date will not KELLEY SurrE CA l3 run until after the current trial date. Moreover, the parties will not have had a reasonable WOLIVER STREH, 14 opponunity t0 conduct discovery and prepare for trial. There have been no previous continuances FRANCISCO, DANNIS BATrERY 15 of the trial. The interests ofjustice are best served by the continuance and no party will be SAN 16 prejudiced. This application is made as soon as reasonably practical once the necessity for the 275 17 continuance was discovered. This ex parte application is based upon this application, the attached 18 memorandum 0f points and authorities, the attached declarations and exhibits, all pleadings and 19 papers on file in this action, and further evidence and argument as may be offered at the time of 20 hearing on this matter. 21 Pursuant to California Rules of Court, rule 3.1202, the known names, addresses and 22 telephone numbers of the attorneys for the parties are set forth in the Service List attached hereto. 23 Pursuant to California Rules of Court, rule 3.1203, and as set forth in the attached declaration of 24 Kasmira M. Brough, timely notice of this ex parte application was given to all parties on 25 September l4, 2018. DANNIS WOLIVER KELLEY 26 27 79 DATED; September 16, 2018 By; KMHM f I l 2 DWK DMS EX PARTE APPLICATION OF DEFENDANT LOS ALTOS SCHOOL DISTRICT FOR CONTINUANCE; 3298466vl MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION [N SUPPORT THEREOF KASMIRA M. BROUGH Attorneys for Defendant LOS ALTOS SCHOOL DISTRICT MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendant Los Altos School District hereby requests a continuance of the trial date \DWNGUIALHN currently set for October 15, 201 8, or in the alternative, an order shortening the time for the Court to hear a motion to continue the trial date. Good cause exists to hear the District’s motion to continue the trial date 0n shortened notice. II. FACTUAL AND PROCEDURAL BACKGROUND The present litigation is a tort case arising out of incident(s) alleged to have occurred at 10 Loyola Elementary School (“Loyola”), a District elementary school. Plaintiff alleges that in 11 1150 January 201 6, while she was a student at Loyola, Plaintiff suffered injuries when two classmates 94111 12 KELLEY SurrE “attacked, bullied and harassed” her behind a shed (“Shed”) located on the Loyola playground CA 13 WOLIVER STREET, premises. Plaintiff asserts a sole negligence claim, pursuant to Education Code section 220, 14 FRANCISCO, 233.5, and 44807.1 The District is the only named defendant and has appeared in this matter. DANNIS BATTERY 15 Plaintiff filed her Complaint 0n or about March 8, 2017. On or about May 26, 2017, the SAN 16 275 District filed its Answer. Shortly thereafter, the parties agreed to engage in limited discovery for 17 the purposes of engaging in mediation, which to date has not occurred. (Declaration of Kasmira 18 M. Brough (“Brough Decl.”), 11 3.) On April 4, 201 8, Plaintiff filed a motion for trial preference, 19 which the District opposed on April 20, 2018. (Ibid., 1] 5.) On May 24, 2018, the Court granted 20 Plaintiff s motion, setting trial for October 15, 201 8, leaving open the possibility of a continuance 21 should discovery be incomplete as of that date. (Ibid., 1111 4, 5) Since then, the parties have 22 continued to engage in discovery, including written discovery, depositions, an independent 23 mental examination, and multiple motions to compel. (Ibid., 11 5) However, discovery remains 24 incomplete, with approximately 10 expert and fact witness depositions outstanding. (Ibid., 11 4.) 25 In the course of this discovery process, on 0r about August 24, 2018, the District 26 27 l Plaintiff‘s second cause of action, for negligence per se, was dismissed by the court on District’s motion on 79 September l3, 2018. 3 DWK DMS EX PARTE APPLICATION OF DEFENDANT LOS ALTOS SCHOOL DISTRICT FOR CONTINUANCE; 3298466vl MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION IN SUPPORT THEREOF attempted unsuccessfully to access the Shed at issue in this case. (Ibid., 1] 7) The District learned 0n that date that the Shed did not belong t0 the District, but was instead erected, owned, accessed, and maintained by E.M. Education, Ltd., dba The Children’s House of Los Altos (“Children’s House”) pursuant to a lease agreement between the District and Children’s House. (Ibid.) Under the terms of that lease agreement, Children’s House leases a portion 0f the Loyola premises and is \DOOQOMAWN obligated to defend and indemnify the District for any liability, claims, and damages arising out of performance of that agreement as well as for any activity or thing done in conjunction with that agreement. (Ibid.) A deposition of Children’s House’s person most knowledgeable about facts relevant to the instant action is scheduled for September 17, 201 8. (Ibid.) 10 On September 13, 201 8, the District appeared ex parte seeking leave to file a cross- ll complaint in this matter. The Court granted shortened notice to file a motion for leave t0 file a 1150 1 1 cross-complaint on Children’s House. 12 The motion was filed, and a hearing on that motion is KELLEY 941 SUITE CA l3 scheduled for October 2, 201 8. WOLIVER STREH, III. LEGAL ARGUMENT l4 FRANCISCO, A. Requirements for Continuance DANNIS BATrERY 15 SAN 16 Although trial continuances are disfavored, each case must be considered on its own 275 l7 merits. (California Rules of Court, Rule 3.1332(c).) The party seeking a continuance “must 18 make the motion or application as soon as reasonably practical once the necessity for the l9 continuance is discovered.” (California Rules of Court, Rule 3.1332(b).) The Court may grant a 20 continuance “only upon an affirmative showing of good cause requiring the continuance.” 21 (California Rules of Court, Rule 3.1332(c).) B. Grounds for a Continuance 22 l. The Addition of a New Party Constitutes Good Cause for a 23 Continuance 24 There are a number 0f circumstances that may indicate the presence of good cause 25 warranting a continuance. One of these circumstances is “[t]he addition 0f a new party if. .. [t[he 26 new party has not had a reasonable opportunity t0 conduct discovery and prepare for trial; or [t]he 27 other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in 79 4 DWK DMS EX PARTE APPLICATION OF DEFENDANT LOS ALTOS SCHOOL DISTRICT FOR CONTINUANCE; 3298466vl MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION IN SUPPORT THEREOF regard to the new party’s involvement in the case.” (California Rules 0f Court, Rule 3.1332(c)(5)(B).) The District only recently learned of Children’s House’s potential involvement in, and relevance to, this case. On August 24, 201 8, the District learned that the shed at issue belongs to \DOOVQ'JIAUJN—i Children’s House, not the District. The same day, the District served Children’s House with a deposition subpoena for personal appearance and production of things. (Brough Dec1., 1t 7.) On September 5, 201 8, the District sent Children’s House a letter tendering defense of the instant action. (Ibid.) On September 13, 201 8, the District appeared ex parte, seeking leave to file a cross-complaint against Children’s House for express and equitable indemnity, contribution, and declaratory relief. (Ibid) The Court instead calendared the District’s motion for leave to be heard on shortened notice. 1150 94111 If the District’s motion for leave to file a cross-complaint is granted at the hearing on KELLEY SUITE MAmN—o —_u—n——— CA October 2, 201 8, the cross-defendant’s response to the cross-complaint will not be due, at the WOLIVER STREET, earliest, until November 2, 201 8 — more than two weeks after the scheduled trial date. Even were FRANCISCO, DANNIS BAWERY Children’s House to be immediately served with and respond to the cross-complaint, the parties SAN 52 would be unable t0 complete any meaningful discovery in advance of the trial date. As set forth 275 S in the District’s motion for leave to file a cross—complaint, granting such leave is in the interests fl 00 ofjustice, as well as judicial economy. A continuance ofthe trial is necessary t0 give meaningful effect to such cross-complaint. 2. lncompleteness 0f Discovery Constitutes Good Cause for a Continuance An additional circumstance indicating good cause for a continuance includes “[a] party’s excused inability to obtain essential testimony, documents, 0r other material evidence despite NNNNNNNN— QOMhWN—OC diligent efforts.” (California Rules of Court, Rule 3.1332(c)(B).) The parties in this case are still actively engaged in discovery. The District’s independent mental examination (“IME”) of Plaintiff is partially completed, with a three hours of examination pending completion on September 2 l 201 8. (Brough Decl., , Tl 4.) Plaintiff has noticed depositions of the District’s two retained experts completing the IME for October 3 and 5, 2018. (Ibid.) Although the District Qn 5 EX PARTE APPLICATION OF DEFENDANT LOS ALTOS SCHOOL DISTRICT FOR CONTINUANCE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION IN SUPPORT THEREOF noticed depositions of Plaintiff‘s retained expert for September 27, 201 8, Plaintiff’s counsel has claimed that Plaintiff’ s expert is not available prior to Saturday, October 6, 201 8. (Ibid.) Moreover, Plaintiff’s most recent responses to written discovery, which were received on September 13, 201 8, were deficient and the District is awaiting further responses. (Ibid.) Discovery in this case was initially limited pending mediation. (Ibid., 11 3.) Discovery has \Ooofiakhbwb) also been complicated and slowed by numerous factors, including privacy protections of the minors involved, confidentiality protections of police, juvenile court, and family court records, and numerous discovery motions. Thus, while the parties have diligently engaged in the discovery process, discovery (including documentary, deposition, and expert evidence) remains 10 outstanding. C. Factors to be Considered bv the Court ll 1150 94111 12 In ruling on a motion for a continuance, “the court must consider all 0f the facts and KELLEY SUITE CA l3 circumstances that are relevant to the determination.” California Rules of Court, Rule 3. 1 332(d) WOLIVER STREEr, 14 sets forth various factors to be considered, including the following: (1) Proximity of the trial date; FRANCISCO, DANNIs BATrERY 15 (2) Whether there have been any previous continuances, extensions of time, or delay 0f trial due SAN 16 to any party; (3) the length of continuance requested; (4) availability of alternative means t0 275 17 address the problem that gave rise to the application for continuance; (5) prejudice that parties or l8 witnesses will suffer as a result of the continuance; (6) if the case is entitled t0 preferential trial 19 setting, the reasons for that status and whether the need for a continuance outweighs the need to 20 avoid delay; (7) the court’s calendar and the impact of granting a continuance on other pending 21 trials; (8) whether trial counsel is engaged in another trial; (9) whether all patties have stipulated 22 to a continuance; (10) whether the interests ofjustice are best served by a continuance, by a trial 23 of the matter, or by imposing conditions on the continuance; and (1 1) any other fact or 24 circumstance relevant to the fair determination of the motion or application. 25 No previous requests for a continuance have been made or granted with respect to the trial 26 in this case, which was set less than four months ago. (Brough Decl., 11 8.) Although Plaintiff is 27 entitled to trial preference, the basis is Code of Civil Procedure section 36, subdivision (b), as a 79 6 DWK DMS EX PARTE APPLICATION OF DEFENDANT LOS ALTOS SCHOOL DISTRICT FOR CONTINUANCE; 3298466vl MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION 1N SUPPORT THEREOF party under 14 years of age (not subdivision (a), concerning parties over 70 years of age). However Plaintiff is not in poor health, nor does she suffer from ongoing injuries such that a continuance would deprive her of needed treatment, nor does it appear that she has directly participated in this lawsuit prior to a partial IME on September 8, 201 8. Given the status of outstanding discovery and the District’s pending motion for leave to file a cross complaint for \DOOQO\MAWN indemnity, the need for a continuance outweighs the need t0 avoid delay. The District will suffer significant prejudice, as set forth above, if the trial date is not continued. Plaintiff opposes a continuance, but has not cited a specific reason for doing so other than citation to Plaintiff’s age and her entitlement to trial preference. The District seeks only a brief continuance to the earliest 10 possible date in 2019. IV. CONCLUSION 11 150 1 94111 12 Under the circumstances, the interests ofjustice are served by a reasonable, short KELLEY Surre CA l3 continuance. For the foregoing reasons, Los Altos School District respectfully requests that this WOLIVER STREET, l4 Court grant the District’s request for a continuance of the trial in this matter, or in the alternative, FRANCISCO, DANNIs BAITERY 15 grant shortened notice to have such a motion heard. SAN DATED: September l6, 2018 DANNIS WOLIVER KELLEY l6 27S l7 ' By: r' . 18 AMY R. LEVINE MATTHEW TAMEL J. l9 KASMIRA M. BROUGH Attorneys for Defendant 20 LOS ALTOS SCHOOL DISTRICT 21 22 23 24 25 26 27 ”)9 7 DWK DMS EX PARTE APPLICATION OF DEFENDANT LOS ALTOS SCHOOL DISTRICT FOR CONTINUANCE; 3298466“ MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION IN SUPPORT THEREOF DECLARATION OF KASMIRA M. BROUGH I, Kasmira M. Brough, declare as follows: AWN 1. I am an attorney admitted to practice law before all the courts of the State of California. I am an associate in the law firm of Dannis Woliver Kelley (“DWK”), attorneys 0f records for the Los Altos School District (“District” or “LASD”) in the matter of Girl Doe v. Los Altos School District, Santa Clara Superior Court Case No. 17CV307094. I have personal \OOONQQII knowledge of the facts set forth in this declaration, except for those facts stated upon information and belief, and as t0 those facts, I believe them to be true. If called upon to testify to these facts, I could competently do so. 10 2. On September 14, 201 8, at 9:42 a.m., I sent notice via email to Plaintiff, through ll her attorney Patricia Lewis, that the District would appear ex parte on September 17, 201 8, at 1150 94111 12 8: I 5 a.m. in Department 19 of the Santa Clara Superior Court, on an application for an order to KELLEY SUITE CA l3 continue trial, 0r alternatively for an order shortening time to a motion to continue trial. A true WOLIVER STREET, 14 and correct copy of this notice is attached hereto as Exhibit 1. FRANCISCO, DANNIs BATrERY 15 3. On March 8, 201 7, Plaintiff filed her Complaint against the District in the present SAN 16 matter. Upon information and belief, in or around May 2017, the parties agreed to participate in 275 17 early mediation in this case and to conduct limited discovery to inform that mediation. 18 Thereafter, discovery was complicated by factors outside the parties’ control, as well as by the l9 need for multiple motions to compel. On or around March 5, 2018, I spoke with Plaintiff’s 20 counsel regarding Plaintiff s possible motion for trial preference, and mediation and trial dates. 21 Plaintiff’s counsel suggested the summer as a possible time frame for mediation. 22 4. This ex parte application is required because this case is set for trial on October 23 15, 201 8, and a mandatory settlement conference on October 10, 201 8, and the parties have not 24 yet completed discovery. The District’s independent mental examination of Plaintiff, authorized 25 by the Court’s July 31, 2018 Order, will not be completed until September 21, 2018. Plaintiff has 26 noticed depositions 0f District experts for October 3 and 5, 2018, as agreed to by the parties. On 27 Thursday, September l3, 201 8, Plaintiff advised that her retained expert, whose deposition was ’79 8 DWK DMS EX PARTE APPLICATION OF DEFENDANT LOS ALTOS SCHOOL DISTRICT FOR CONTINUANCE; 3298466vl MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION [N SUPPORT THEREOF noticed for September 27, 201 8, is not available for deposition prior to October 6, 201 8. In addition to those expert depositions, seven other depositions are scheduled between September 17 AWN and 28, 201 8. Additionally, Plaintiff has not as of yet fully responded t0 all written discovery requests. True and correct copies of correspondence with Plaintiff regarding the above outstanding discovery issues are attached hereto as Exhibit 2. 5. On April 4, 201 8, Plaintiff filed her motion for trial preference, which the District \OOONOLII opposed on April 20, 201 8. Plaintiff’s motion was granted following a hearing on May 24, 201 8, and trial was set for October 15, 201 8. Upon information and belief, at the hearing the court left open the possibility of a continuance if the parties were unable to complete discovery in advance 10 of that scheduled trial date. Since then, the parties have diligently engaged in extensive 11 discovery, including written discovery, depositions, and independent mental examination. 1150 94111 12 6. Upon information and belief, at the case management conference on August 28, KELLEY SUITE CA l3 2018, the Court suggested that the parties participate in mediation in advance of trial. Scheduling WOLIVER STREEr, l4 mediation between completion of discovery and the currently scheduled trial date will be FRANCISCO, BAwERY 15 difficult, if not impossible. DANle SAN l6 7. This ex parte application is further required because in the course of discovery, the 275 17 District learned of the existence 0f related claims against a third-party, arising out of the same l8 transaction 0r occurrence as Plaintiff’ s claims against the District. Upon information and belief, l9 on or around August 24, 201 8, the District attempted to access the shed at issue in this suit, and 20 learned that it belonged to E.M. Education Ltd., dba The Children’s House of Los Altos 21 (“Children’s House”), pursuant to a lease agreement between the District and Children’s House. 22 Under the terms of that lease, Children’s House agreed to defend and indemnify the District for 23 claims arising out of performance of the lease. On August 24, 201 8, I caused to be served on 24 Children’s House a deposition subpoena for personal appearance and production of documents, 25 which deposition is now scheduled for September 17, 2018. On September 5, 201 8, my co- 26 counsel Matt Tamel caused Children’s House to be served with a letter tendering defense of this 27 case. On September l3, 201 8, the District filed a motion for leave to file a cross-complaint for 79 9 DWK DMS EX PARTE APPLICATION 0F DEFENDANT LOS ALTOS SCHOOL DISTRICT FOR CONTINUANCE; 3298466vl MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION IN SUPPORT THEREOF l express and equitable indemnity, contribution, and declaratory relief against Children’s House. That motion is scheduled for hearing on shortened notice on October 2, 201 8. If that motion is AWN granted, Children’s House will be unable to respond to the cross-complaint or complete discovery prior t0 trial. A true and correct copy of the Court’s order granting shortened notice on the District’s motion for leave t0 file a cross-complaint is attached hereto as Exhibit 3. 8. There have been no prior continuances or extensions of trial in this case. \DOO\IQUI I declare under penalty of perj ury, under the laws 0f the State of California, that the foregoing is true and correct. Executed this 16th day of September, 2018, in Oakland, California. ‘ 10 XM’LHLA' é 150 11 KASMIRA M BRCUFH 1 94111 12 KELLEY Surrs CA 13 STREET, WOLNER 14 FRANCISCO, DANNIS BAWERY 15 SAN l6 275 17 18 19 20 21 22 23 24 25 26 27 79 10 DWK DMS EX PARTE APPLICATION OF DEFENDANT LOS ALTOS SCHOOL DISTRICT FOR CONTINUANCE; 3298466“ MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION IN SUPPORT THEREOF EXHIBIT 1 Kasmira M. Brough From: Kasmira M. Brough Sent: Friday, September 14, 2018 9:42 AM To: Patricia Lewis Cc: Matt Tamel; Jennifer Choi Subject: Ex Parte Applications -